Five
petitions seeking to postpone California’s
historic recall election or alter the composition of the Oct. 7 ballot were
rejected yesterday by the California Supreme Court.

The
court unanimously rejected a petition by Gov. Gray Davis and others seeking to
delay the election until March and to allow the governor to be a candidate to
succeed himself, two petitions seeking to knock all replacement candidates off
the ballot and allow Lt. Gov. Cruz Bustamante to succeed Davis if the voters
remove him from office, and a bid to prevent two ballot measures from being
submitted to voters at the same time as the recall.

In
a 5-2 decision, the justices upheld Secretary of State Kevin Shelley’s ruling
that any candidate meeting the requirements for nomination for governor at a
primary—65 signatures and a $3,500 filing fee, or 10,000 signatures without the
fee—can run in the recall election.

In
a brief order, the justices summarily rejected claims by the governor and
supporters that because of the potential use of punch card ballots and
consolidation of polling places, voters in some counties will be denied their
equal protection right to have their votes count as much as others.

Longstanding
Prohibition

The
petitioners in Davis v. Shelley,
S117921, also argued that the California Constitution’s longstanding
prohibition on permitting an officer who is the subject of a recall election
from appearing on the ballot to pick a successor violates the equal protection
rights of his or her supporters.

They
also claimed California’s
recall process violates the federal constitutional guarantee of a republican
form of government by frustrating majority rule, since the governor could be
ousted by only slightly more than 50 percent of those voting, while a successor
could be elected with a much smaller percentage of the votes.

The
justices denied, without comment, Jon Eisenberg’s claim that Proposition 54,
which would restrict the government’s ability to collect racial and ethnic
data, and Proposition 55, a legislative constitutional amendment dealing with
public finance, should be voted on at the March election and not at the same time
as the recall.

The
Oakland
attorney argued in Eisenberg v. Shelley,
S117763, that the recall ballot is not a “special statewide election” and thus
cannot contain ballot measures.

A
similar challenge, with a different legal basis, is pending before Judge Jeremy
Fogel in U.S. District Court in San
Jose. The Mexican American Legal Defense and
Educational Fund is arguing that the shortened period for the mailing of ballot
materials related to the initiatives has not been approved by the Justice
Department and thus violates the preclearance requirements of the Voting Rights
Act.

MALDEF
Suit

MALDEF
Vice President Thomas Saenz told the METNEWS yesterday that the state had
virtually conceded the plaintiff’s position by asking for preclearance after
the lawsuit was filed. In view of yesterday’s ruling, he said, he expects to
obtain a temporary restraining order in the next few days.

In
Frankel v. Shelley, S117770, and Byrnes v. Bustamante, S117832 the justices
unanimously rejected the argument that constitutional language to the effect
that voters will elect a successor to a recalled official at the same ballot
“if appropriate” means that no successor to the governor would be elected,
since under another provision of the Constitution the lieutenant governor fills
any vacancy in the office of governor.

The
justices agreed with the secretary of state that the “if appropriate” language
refers to appellate justices, to whom no successor would be elected at a recall
election since they are appointed, not elected, officials. The lieutenant
governor would not succeed a recalled governor, they said, because there would
be no “vacancy” if a new governor were to be elected.

In
the only case to draw substantial disagreement among the justices, Burton v. Shelley, S117834, a four-justice
majority—Justices Marvin Baxter, Kathryn M. Werdegar, Ming Chin, and Janice
Rogers Brown—said Shelley did not commit “clear error” by adopting the low
threshold for qualifying.

Justice
Joyce L. Kennard concurred separately, saying the election should not be
postponed after voters had “overwhelmingly” qualified it.

Chief
Justice Ronald M. George, who dissented, argued that the potentially lengthy
ballot—it was reported yesterday that as many as 500 candidates had taken out
papers to run, although only a fraction of them had returned the documents with
the filing fee and/or signatures—has created “chaos, confusion, and [a]
circus-like atmosphere.”

George
said the election should be stayed, and that candidates should be required to
obtain at least 74,767 signatures, or one percent of the number of votes cast
for governor at the last election, which was the standard prior to a state
constitutional amendment that revised recall requirements in the 1970s. There
was no clear evidence that the voters intended to relax those requirements when
they approved the amendment, which was largely a housecleaning proposal, George
argued.